The Responsibility to Protect and Kenya: Past Successes and Current Challenges

Introduction

The passing of the 4 August constitutional referendum inKenya is a promising sign in the broader context of effortsto prevent atrocities and uphold the responsibility to protect(R2P). The peaceful referendum sharply contrasts with thewave of violence that erupted in the wake of the disputedDecember 2007 presidential election, when within hours of the announcement of the results violence broke out. Lessthan two months later 1,133 Kenyans had been murdered,unknown numbers raped, and over 500,000 forcibly drivenfrom their homes. The perpetrators included individuals,militias and the police with victims often targeted on thebasis of their ethnicity and corresponding perceived supportfor a particular presidential candidate.International actors responded swiftly to crimes thatappeared to rise to the level of crimes against humanity,crimes that states committed themselves to protectpopulations from in adopting R2P at the 2005 WorldSummit. This response, consisting primarily of an AfricanUnion (AU) led mediation process but also supported by theUN, Kenya’s neighbors, key donors, and civil society,helped stem the tide of violence. Human Rights Watch andothers referred to the response as “a model of diplomaticaction under the responsibility to protect.”As the country moves towards elections in 2012, R2Premains relevant as the risk of reoccurrence of atrocities ispresent. The AU, UN and key states, must work with, andurge, the government to uphold its responsibility to protect.While implementing the reforms agreed to in thegroundbreaking referendum will be crucial, as many areintended to address the underlying causes of violence, thisalone will not be sufficient. Additional strategies to preventatrocities and address protection gaps, including through thecreation of contingency response plans to halt atrocitiesshould they re-occur, will need to be developed.

Applying the Responsibility to Protect to 2007/8

In committing to uphold R2P the Kenyan governmentaccepted the responsibility to protect its population fromgenocide, war crimes, crimes against humanity and ethniccleansing. The government thus had a responsibility to:ensure that government officials did not incite or facilitatethe commission of crimes; mitigate rampant hate speech;deter private actors from inciting, aiding or perpetratingcrimes; arrest and prosecute perpetrators; and ensure thatthe police and the military observe international humanrights standards and develop the capacity to respond rapidlyto threats of atrocities.In the context of a contested election the government wasunable and unwilling to take the steps necessary to protectits population. When incumbent President Mwai Kibaki, amember of the Kikuyu ethnic group, was declared the victorover Raila Odinga, a Luo, on 27 December 2007, peopleswiftly took to the streets to protest the perceived rigging of the election. The protests, which had clear ethnicundertones, led to looted stores, destroyed homes, anddisplaced and killed Kenyans. The violence at first seemedspontaneous, but it soon became apparent that much of itwas organized and targeted. Retaliatory killings, perpetratedoften by militias (formed frequently along ethnic lines, andcomprised of disenfranchised youth) became commonplace.The scale of the violence and its widespread nature wasunprecedented but some level of turmoil around theelections should have been anticipated and preventiveaction taken to avert possible atrocities. A warning of possible political unrest was issued by the African PeerReview Mechanism in 2006 and a pattern of violence, oftenof an ethnic nature, had marred elections in Kenya for overtwenty years. It had developed as a result of a combinationof factors including: politicization of ethnicity; corruption,abuse of power and non-adherence to the rule of law; acentralized and highly personalized form of governance;inequitable development and equally important, a winner-takes-all form of political victory that was perceived asbenefiting the Kikuyu, together with a widespreadperception that certain groups, including the Luo, were notreceiving a fair share of resources.A culture of impunity where perpetrators of past violencewere not held accountable for their acts sent the signal thatthere would be no consequences for crimes committedaround the 2007 election. In the months leading up to theelection hate speech, including by political figures, wasrampant as was the sending of incendiary SMS textmessages. The government failed to address these warningsigns or any of the underlying causes of the violence.The state’s ability to take protective action was impeded byinstitutional weaknesses. At times, poorly trained policeforces committed crimes with impunity, and acted withallegiance to their ethnic groups and preferred politicalcandidates rather than to the state. The military’s reachacross the country was limited creating a greater reliance onthe police. Reports indicate that some police refused tointervene, resorted to disproportionate force, or carried outextra-judicial killings with one third of the victimsreportedly killed by the police. Senior government officials,